Bits and Bytes NO. 88

New PTO Director: The USPTO will be closed on Monday and Tuesday (Jan. 19-20). When it reopens, John Doll will be the Acting Director of the USPTO. Doll is a career PTO official and already fully understands the system and the role of the PTO director. Because Doll has had considerable influence while working under Jon Dudas, we can expect that there will be few immediate or dramatic changes. In part because of the absence of a Commerce Secretary, I expect that Doll's tenure will likely last for several months.

Secretary of Commerce: While on the topic, I heard this morning that John Thompson, CEO of Symantec may be named appointed as the next Secretary of Commerce. If appointed, Thompson may play an important role in some patentability disputes. Symantec has been directly involved in a number of patent litigation disputes – both as a plaintiff and as a defendant. Symantec is the assignee of hundreds of patents. I cannot say, however, whether Thompson feels scorned or empowered by the current patent system.

Chief Judge Michel & Professor Lichtman: Professor Doug Lichtman has introduced his most recent guest on the "IP Colloquium" – Chief Judge Paul Michel of the Court of Appeals for the Federal Circuit. In an hour-long discussion, the pair discuss common deficiencies in appellate advocacy; the important value of amicus briefs at the rehearing stage; Section 101 post-Bilski; and the lost doctrine of equivalents. Professor Lichtman has configured the system so that you can also easily claim free CLE credit in California, Illinois, NY, Texas, or Washington State. Excellent work!

ABA Top Legal Blogs: For two years in a row, the ABA Journal has chosen Patently-O as one of the top 100 legal blogs. (Only 50 blogs made the cut both years). In addition, Patently-O has been honored in 2008 as the top legal blog focusing on a niche area of law. Thank you to everyone who voted during this process! In time for Patently-O's fifth anniversary in April, I expect that the website will record its ten-millionth visit in addition to the 16,000+ readers who receive their updates via the daily e-mail feed.

Patent agent Brian Galvin has started a new blog, in a recent post, he discusses the BPAI's Cornea-Hasegan Opinion. His analogy is interesting: "[The current state] of statutory eligibility … reminds me of … Ptolemaic astronomy just before Galileo, Kepler and Copernicus. The more wheels we add, the more untenable the whole structure." [LINK]

21 thoughts on “Bits and Bytes NO. 88”

I’m listening to the interview with Michel about Bilski. Interesting comments –

(1) Michel seems genuinely surprised that the commentators had even weak, narrow, conservative complaints about his opinion.

I presume that Michel doesn’t pay much attention to practitioners’ opinions… e.g., PatentlyO. Of course, this is half of the problem with the CAFC.

(2) Complete dodge of the question of why the CAFC wasn’t more creative. He blames SCOTUS for not having heard any fundamental s101 cases since 1980 – and then also blames attorneys for not presenting a wider range of options for new case law! Wow.

I’ll admit that I was surprised that some of the amicus briefs by deeply invested players were quite meek… i.e., admitted some type of “physicality” requirement, and fell back on Parker v. Flook to save the patenting of software. But the CAFC had signaled so heavily that it was itching to crush software patents that any “preserve State Street” argument had a snowball’s chance in hell. So it’s disingenuous for Michel to blame the patent bar for not submitting stronger positions that the CAFC had proactively deprecated.

(3) “Think of State Street – it sat un-relitigated for ten full years! You would have thought that six months later, in some similar case, somebody would have asked us to reconsider State Street.”

Riiiight. Because when the CAFC is all puffed up over having crafted a brand-new toy with which to rule, I’m going to walk into court and ask it to smash its new toy to smithereens. A tactic that hopeless might border on malpractice.

===

In some instances, I was surprised and pleased to hear Michel express an understanding of a patentee’s concerns (particularly the consequences of absurdly long BPAI delays.) But in general, I found Michel’s comments reminiscent of some of GW’s: a sense that he knows what’s best for the system, and that he is going to blaze his own trail to a brighter future – despite what anyone else might tell him or what the data may show. By the end, I half-expected him to pull out GW’s irrefutable anchor: “I really don’t care what people say today; I’m confident that history will judge me well.”

– David Stein

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Thanks JAOI, I am no stranger to the bulk of your post, except the part about Thompson. Thanks for the heads up. In that case, let’s make sure that whoever occupies the Director/Undersecretary position will be a strong personality capable of standing up to him. I’m still waiting to hear the outcome of the hearings on Dudas’ impropriety regarding allegedly meeting improperly with RIM executives while inter partes proceedings were underway. Its amazing what can get swept under the rug.

Its times like these when the last thing we need is for Global Corp Inc. to choke the life out of the American entrepreneur – even if he is working on a new operating system to displace Windows using a Symantec development system.

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Thanks for all your comments about Malcolm – it saves me the trouble. However, Symantec’s John Thompson is no “fresh breeze.”

Symantec is a member of the dreaded “Coalition for Patent Fairness.” As CEO of Symantec, John Thompson is responsibility for Symantec shameful part in the Coalition, which is a cartel hell-bent on destroying the heart of the American patent system —
— lest we forget, the Coalition’s agenda
is to close the barn door behind them,
&, of course,
to make patenting by self-employed independent inventors unprofitable.

The Coalition applauds the eBay decision which unlawfully denies a certain class of patent owners, including self-employed independent Inventors, their Constitutional right, i.e., “… the exclusive Right to their … Discoveries;”. Since the eBay debacle, certain Inventors cannot stop infringement of their patents EVEN AFTER VALIDITY AND INFRINGEMENT HAVE BEEN PROVEN IN COURT. Post eBay, compulsory licensing is the rule, but only for a certain class of Inventors and other patent owners.

Thus, the Coalition conspirators are safe from us independent inventors. And, BY LIMITING DAMAGES (see Coalition letter below), there is no business reason for a big business infringer to take a license until after multi-million dollar litigation, and only then if it loses in court, a court which is often run by big-business Judges who have been “tainted” by Coalition propaganda.

If you click around on the Coalition’s website, you’ll see all kinds of nauseating propaganda geared toward making patenting by self-employed independent inventors unprofitable.link to patentfairness.org
Below is the first Coalition lobbing letter listed on this Coalition link.

Supporters of patent reform and the Coalition for Patent Fairness wish to express our strong support for your continued efforts to enact S.1145, the Patent Reform Act of 2007. After years of deliberation, dozens of House and Senate hearings, and more than 150 stakeholder meetings, it is time to pass this critical legislation.

By standing firm on the need for meaningful reform of the law on damages – reform that recognizes the vast changes that have taken place in the nation’s economy over the past fifty years and modernizes the law to accommodate those changes – you have shown determined leadership to achieve a more balanced and equitable system.

The Coalition for Patent Fairness agrees with your decision to seek the right bill, not just any bill. Ensuring that patent reform codifies a method for appropriately and fairly compensating patent holders is critical for future innovation in various industries.

The Coalition for Patent Fairness looks forward to continuing to work with you and other stakeholders to achieve meaningful patent reform in the 110th Congress.

Sincerely,
The Coalition for Patent Fairness
————————————————-

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I would assume that someone like John Thompson would have a good idea of why aspects of software intensive inventions are worthy of patentability. I feel a fresh breeze coming up the bay. Maybe it will blow the stink of Mooney out of here.

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Re:
“Secretary of Commerce: While on the topic, I heard this morning that John Thompson, CEO of Symantec may be named appointed as the next Secretary of Commerce. If appointed, Thompson may play an important role in some patentability disputes. Symantec has been directly involved in a number of patent litigation disputes – both as a plaintiff and as a defendant. Symantec is the assignee of hundreds of patents. I cannot say, however, whether Thompson feels scorned or empowered by the current patent system.”

With all due respect, I think you missed the boat.
Symantec is a member of the dreaded Coalition for Patent Fairness,
and I don’t expect Symantec people have any more scruples than
the anonymous propagandists bums at Cisco.

And, lest we forget, the Coalition’s agenda
is to close the barn door behind them,
and, of course,
to make patenting by self-employed independent inventors unprofitable.

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